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Mid-August: the precious time when Supreme Court justices gallivant around the world and the Constitution is, as Chief Justice John Roberts once put it, safe for the summer. Or that’s how it used to be.
Today, of course, the Court no longer finishes its most important work with the marquee cases of late June. Instead the justices are issuing key rulings the whole year round, many of them without argument, without trial courts finding facts, and often without explanation. Now summer, like spring, winter, and fall, is the season of the shadow docket.
Some justices have protested that the term sounds unfairly sinister; they prefer “interim” or “emergency” docket, which was accurate for most of history, when it was used almost exclusively for matters that could not wait for the Court’s leisurely pace to be resolved: appeals by death row inmates for a stay of execution and so forth.
But “shadow” is an appropriate word to describe the docket as it is managed by the current Court’s majority, which uses it constantly to issue supposedly temporary rulings, almost always without briefing, oral arguments or, in many cases, written opinions with vote counts. All of these features are present in the Court’s more well-known merits docket, and they are also the means by which it shores up its legitimacy.
Their absence from most of the shadow docket cases raises serious concerns about the Court’s operation and sows confusion throughout the federal judiciary. That’s why this week’s newsletter is going to focus on something that only a few years ago I would not have imagined would be necessary: a federal law to force the Supreme Court to explain its own rulings.
How can it have come to this? Isn’t it the most contemplative institution in American government? The one that takes months if not years, and dozens if not hundreds of pages, to decide some of the highest-profile disputes in American life?
Certainly the chief justice sees it that way. Back in 2018, he firmly rejected an interviewer’s suggestion that it was time, at long last, for cameras in the Court. “We’re the most transparent branch in government, in terms of seeing us do our work and us explaining what we’re doing,” Roberts responded.
And yet here we find ourselves in the summer of 2026 — 250 years after the beleaguered colonists, driven by “a decent respect to the opinions of mankind,” laid out in explicit detail their reasons for armed revolt — pleading with nine unelected, life-tenured lawyers to show us their work.
As Supreme Court reform becomes a major talking point in advance of the midterms, let’s give some attention to one of the clearest ways Congress can rein the justices in.
First, a reminder of how quickly the legal landscape has changed: Until recently, the government rarely asked the justices to decide cases on the emergency/interim/shadow docket. Presidents George W. Bush and Barack Obama sought such action only 8 times in 16 years. But in the last decade, the Court’s definition of “emergency” has grown to include almost any lower-court ruling the justices feel like weighing in on. While these shadow docket orders are not final in a legal sense, they often are in a practical one — say, when the Court allows the president to deport an undocumented immigrant or fire thousands of civil servants.
Combine this with a president who believes everything is an emergency — during Trump’s first term his administration sought shadow docket relief 41 times — and you have a recipe for the sort of arbitrary, unexplained exercise of power that led Americans to declare their independence from the Crown in the first place.
Now, like so much other harmful behavior over the last decade, presidents filing for emergency applications has become normalized. Taking a cue from Trump, the Biden administration ran to the Court far more often than Bush or Obama did (19 times); still, Trump remains the undisputed champion of line-cutting, matching Biden’s four-year total in the first 20 weeks of his second term and reaching nearly double that number before the midterms.
Currently the Court is considering emergency appeals from Trump regarding whether he can build a new White House ballroom without going through Congress, and whether he can make it harder for Americans to cast their vote by mail (the way Trump himself votes).
As my Brennan Center colleagues are assiduously tracking, Trump has prevailed in the vast majority of these petitions, a fact his apologists attribute to his administration’s strategy of bringing only the cases they feel confident in. Either way, the Court has made it easier for Trump to win by quietly altering its own standards. In the past, the justices first decided whether the party seeking an emergency stay would suffer “irreparable harm” if the lower-court ruling were allowed to stand. Now, the right-wing justices appear to have decided that a president is irreparably harmed whenever he is blocked from implementing a policy — a Republican president, anyway. (They do not appear to consider the irreparable harm to, say, a wrongfully deported immigrant.)
The justices’ unexplained change in standards plus Trump’s remarkably high win rate has led reasonable people to suspect that decisions are being made for partisan political reasons, an imputation that the Court can never afford, and certainly not these days.
What’s particularly frustrating is that this should be a low bar for America’s highest court. Requiring officials to give reasons for their actions is the foundation of liberal society, the sine qua non of modern representative government. It’s what separates a constitutional democracy from an authoritarian regime. Indeed, it’s right there in the Constitution: The Great Writ — habeas corpus — is based on the principle that if the state wants to detain you or deprive you of your liberty, it must first bring you into open court and provide the precise reasons why.
Instead, the Roberts Court has grown far too comfortable making decisions without giving reasons, confounding not only the litigants before them but all the lower-court judges who must scramble to apply the new rulings correctly, if they can understand them in the first place.
Justice Sonia Sotomayor flagged this latter issue in her dissent from the Court’s shadow-docket ruling last fall in Noem v. Perdomo, which permitted — without explanation — racial profiling by immigration officials in Los Angeles to continue. “Neither the District Court nor the parties will know whether the majority believed the key issue was standing, the merits, or the scope of relief. . . . It will be anyone’s guess [what] the majority thought.”
That wasn’t a hypothetical. In an incident from another case last fall, a veteran federal district judge, William G. Young, blocked the Trump administration from canceling millions of dollars in grants by the National Institutes of Health. Apparently, Young had failed to intuit the meaning of an earlier shadow docket ruling by the Supreme Court, which involved the canceling of grants by a separate agency while offering almost no actual reasoning. For this crime, the judge endured a harsh public scolding by Justices Neil Gorsuch and Brett Kavanaugh.
“Lower-court judges may sometimes disagree with this Court’s decisions, but they are never free to defy them,” Gorsuch wrote.
Young, a Reagan appointee and judge for 47 years, apologized in open court. “Never before this admonition has any judge in any higher court ever thought to suggest that this court had defied the precedent of a higher court — that was never my intention,” he said. “I simply did not understand that orders on the emergency docket were precedent,” he added. “I stand corrected.” (Never mind that the justices seem unable to agree even with themselves on this point: In his smackdown of Young, Gorsuch wrote that a Supreme Court decision is a “precedent that commands respect in lower courts,” but only five years ago Justice Samuel Alito had said emergency docket rulings are not precedential.)
As I wrote in another context, the wrong judge apologized. It should have been Gorsuch and Kavanaugh saying sorry — in this case, for their smug rebuke of a dedicated and honorable judge doing the best he could with useless guidance from the high court. Thankfully, one of Young’s colleagues, Judge Allison Burroughs, stood up for him, writing in a footnote in one of her own cases that the Supreme Court’s shadow docket rulings “have not been models of clarity” and that “it is unhelpful and unnecessary to criticize district courts for ‘defying’ the Supreme Court when they are working to find the right answer,” despite the Court’s tendency to disregard precedent “without much explanation or consensus.”
The justices are aware of the growing concerns about their use of the shadow docket, and their responses have ranged from haughty dismissiveness (Alito, who called the criticisms “silly”) to defensiveness (Justice Clarence Thomas, who blamed aggressive litigants) to genuine regret (Justice Ketanji Brown Jackson, who said in a speech that issuing “important decisions in such a cursory manner disrespects not only the people whose lives are upended by the rulings but also the public.”)
